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Is Cash Bail Constitutional? This Federal Judge Certainly Thinks So.

Long-Pending Lawsuit That Claims Cash Bail is Unfair to Poor People

Finally Ends in U.S. District Court.

Article Written by Sara Chan

Last Thursday, the United States District Court for the Southern District of Texas dismissed the case of Russell v. Harris County — a move impacting millions of incarcerated individuals around the country.

U.S. District Judge Lee H. Rosenthal ruled that the lawsuit was moot because the result was mandated by the case of Daves v. Dallas County, in which plaintiffs sued Dallas County, claiming that its use of a predetermined bail schedule was unconstitutional because it meant that poor defendants could not afford to pay for their release from jail.

This brings a close to litigation which sought to force Harris County to simply release defendants in felony criminal case proceedings.

Mike Byrd, President of the Professional Bondsmen of Texas (PBT) said:

"The weaponization of our federal courts in an attempt to force extreme reforms that would never pass through the Texas legislature is the biggest untold story in criminal justice reform throughout the country."

Scott Walstad, Chairman of the PBT Legislative Committee said, "Congratulations to Harris County. Hopefully this will mark the beginning of making crime a criminal matter again in Harris County."

Ken W. Good, PBT Board Member went on to add, "This opinion will allow judges to do what they do best and that is to exercise their discretion to keep the bad people and the people who refuse to go to court, in jail."

Good also commented, "The private bail industry does one thing and that is it gets people to court. If the county and judges care whether people show up for court, then the bail industry is prepared to work with the courts to get people to their court hearings so that victims can receive justice."

Efforts for the release of felony case defendants began in 2016 with the case of ODonnell v. Harris County, filed in Houston. In that case, a ruling by Judge Rosenthal resulted in the county adopting a simple release system for misdemeanor cases. In reviewing two-years of data from the county, the average failure to appear rate has increased to more than 80 percent (

Following that decision, bail reform advocates filed suit in in Dallas County (Daves v. Dallas County) which sought to extend the ODonnell ruling to felony cases as well. Similar cases were also filed in Galveston County (Booth v. Galveston County), as well as the just-concluded Russell case.

In the Daves case, the Dallas federal court extended the preliminary injunction issued in ODonnell against misdemeanor judges and extended it to felony judges. The preliminary injunction was subsequently appealed to the Fifth Circuit Court of Appeals.

The initial panel decision refused to extend the ODonnell ruling regarding misdemeanor judges to the district court judges. The panel also noted that it would have come to a different conclusion than the one arrived at by Judge Rosenthal on the misdemeanor judges, but was bound by the prior decision since it had already been affirmed by the Fifth Circuit.

Thereafter, a motion for rehearing en banc was granted and the full Fifth Circuit, made up of fifteen judges, reconsidered the opinion. The Appeals Court reversed Judge Rosenthal's ruling on the misdemeanor judges and held that any judge setting bail could not be sued under a claim under 42 U.S.C. Sec. 1983 because the judge was functioning as a state actor for these purposes.

The Fifth Circuit then remanded the case to the District Court in Dallas to make certain findings on the issues of whether Texas' Senate Bill 6 mooted the litigation, and also to reconsider the issue of whether the federal court should abstain since the sheriff and other minor players were the only parties remaining.

The trial court made its findings and sent the case back to the Fifth Circuit en banc for final disposition. It noted that while Senate Bill 6 did moot the litigation, it recommended that Younger abstention should not be granted.

The final opinion issued by the Court of Appeals en banc dismissed the Daves case, saying that to begin with, both ODonnell and Daves should never have been filed in federal court. The Fifth Circuit also held that the federal court should have abstained. In addition, it dismissed the case as moot.

Daves is currently pending on a petition for cert before the U.S. Supreme Court, with a response by the county that was due earlier this week.

In the Russell case, plaintiffs sued the sheriff, Harris County and the district court judges. After the Fifth Circuit reversed ODonnell, saying that the judges could not be sued in such litigation, Judge Rosenthal dismissed the district court judges. However, the case has remained pending against the sheriff and county.

After the final opinion by the Fifth Circuit in Daves, Judge Rosenthal ordered the remaining parties in Russell to brief the issue of mootness and abstention.

In dismissing the case of Russell v. Harris County, Judge Rosenthal acknowledged the ruling in Daves, while noting that only the U.S. Supreme Court can intercede. In her Memorandum Opinion, she wrote, "Unless the United States Supreme Court steps in, this court is bound by Daves I and Daves II. This case must be dismissed. Final Judgment will be entered separately."

Judge Rosenthal nevertheless argued that the core ruling she made in ODonnell was upheld throughout the various appeals of the case, even though her orders were consistently reversed. She did not acknowledge that the Court of Appeals made a point of saying theODonnell should have never been filed in federal court.

While Judge Rosenthal dismissed the case as moot, she did not address abstention, saying only, "The court also, in what appears to be an advisory opinion given its conclusion that the case was moot, overruled ODonnell's holding on Younger abstention."

Unless the U.S. Supreme Court decides to take this case, the ruling of the Fifth Circuit will prevent the filing of similar cases in an attempt to micromanage state criminal case proceedings going forward. If the Supreme Court elects to take the case, the high court may expand the ruling to apply nationwide.

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Sara Chan (she/her) is a contributing writer for and a full-time political consultant based in Los Angeles, CA. She received her B.A. in Political Science from UC Berkeley and is currently working towards her Master's Degree in in Global Studies & International Relations from Northeastern University. She is a proud member of the California Democratic Party and helps local politicians around the country craft bespoke campaign messaging and concise platforms that appeal to voters of various backgrounds.


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